Seth Jaffe

As I noted when the 5th Circuit Court of Appeals stayed EPA’s disapproval of Texas’s regional haze plan, EPA had pretty much no chance of winning. Although the parties then stayed the litigation to talk settlement, EPA...more

Earlier this month, the White House released a Presidential Memorandum on “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment.” If that portentous title isn’t enough to make...more

Fully five years ago, I noted that the cavalier treatment by government officials of FOIA requests made by opponents of government policy revealed a degree of self-righteousness that was both offensive and self-defeating –...more

Traditionally, environmental impact analysis, under NEPA and state analogs, has focused on the impacts that a proposed project may have on the environment. In Massachusetts, the Executive Office of Energy and Environmental...more

So the new Congress will be controlled by the GOP. The House and Senate will consider various bills to reign in EPA authority. Here’s one relatively modest suggestion for congressional consideration: amend CERCLA to limit...more

I have previously noted that standing is a double-edged sword. Most commonly, the regulated community uses standing to keep citizen plaintiffs out of court. However, as the D.C. Circuit Court of Appeals demonstrated...more

The last frontier of citizen climate litigation has been state-based litigation alleging that states have a public trust obligation to mitigate climate change. As I have previously noted, I’m skeptical that these cases are...more

In an important decision yesterday, Judge Douglas Woodlock of the District of Massachusetts confirmed that CERCLA preempts local cleanup bylaws. The case involved one aspect of the cleanup of the W.R. Grace Superfund Site in...more

This past April, the D.C. Circuit struck down the part of EPA’s cement kiln rule that would have provided an affirmative defense to civil penalties for excess emissions resulting from unavoidable malfunctions. As we noted at...more

In July, we noted that the Clean Water Act’s permit shield defense would be construed narrowly, applying only where a permittee had clearly disclosed that the relevant pollutant to the agency. This week, in Alaska Community...more

I do not want to suggest that most environmentalists are Luddites or that the environmental movement is opposed to economic development. Indeed, hardly a speech is made today that does not tout the economic benefits of...more

Last week, the 9th Circuit Court of Appeals issued a decision that arguably explains everything from why the Tea Party exists to why otherwise calm and sane executives suddenly lose all their hair. Perhaps most astounding,...more

Last Friday, EPA published notice that it would not be revising its regulations on backup generators in response to three petitions for reconsideration it had received after it promulgated its final rule in January 2013. The...more

In Cannons Engineering, the First Circuit Court of Appeals famously stated that, when CERCLA consent decrees arrive at the courts of appeal for review, they do so “encased in a double layer of swaddling,” because both the EPA...more

Last week, the Ohio Valley Environmental Coalition and other NGOs obtained summary judgment that Alex Energy had violated both its NPDES permit and its Surface Mining Permits due to exceedances of the West Virginia water...more

Yesterday, I noted that the D.C. Circuit rejected challenges to EPA’s Enhanced Coordination Process and Final Guidance on Clean Water Act permitting for mining activities. It was not EPA’s only CWA victory. On the same day,...more

As I noted last year, there has been a concerted effort on the part of those fighting climate change to emphasize economic issues in connection with their policy proposals. That post concerned Senator Markey’s efforts to...more

The Supreme Court affirmed EPA’s authority to subject 83% of greenhouse gas emissions to its PSD and Title V Operating Permit programs. However, EPA’s rationale for the rule did not fare so well, and EPA does not have...more

Last week, in posting about EPA’s Clean Power Plan, I noted that some potential plaintiffs might face standing obstacles in seeking to challenge the rule, assuming it is promulgated as proposed. Today, I take a (very)...more

In a case of interesting timing, three days after EPA announced its proposed GHG rules for existing facilities, the D.C. Circuit affirmed dismissal of a case seeking an injunction against EPA and other federal defendants...more

As some folks may have heard, EPA proposed emission guidelines for GHG emissions from existing generating units on Monday. Obviously, the rule is a little too complicated to summarize in one blog post, though I’ll try to post...more

On Monday, EPA finally announced promulgation of its long-awaited rule governing cooling water intake structures at existing facilities. The rule is certainly important, but it’s not earthshattering and it may be more...more

As we have noted previously, EPA has had difficulty in promulgating a revised National Ambient Air Quality Standard for ozone. Whenever the revised NAAQS is issued – and EPA is under court deadline to propose a draft by...more

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